As used in this part 3, unless the context otherwise requires:
(1) "Commercial telephone seller" or "seller" means a person who, in the course of such person's business, vocation, or occupation, on the person's own behalf or on behalf of another person, causes or attempts to cause a commercial telephone solicitation to be made; except that "commercial telephone seller" or "seller" does not include the following:
(a) A person offering or selling a security as defined in section 11-51-201 (17), C.R.S.,
if:
The security is either registered with the securities commissioner under section 1151-303 or 11-51-304, C.R.S., exempt from registration under section 11-51-307, C.R.S., or the transaction in the security is exempt under section 11-51-308, C.R.S.; and
The person is licensed by the securities commissioner as a broker-dealer as definedin section 11-51-201 (2), C.R.S., unless expressly excluded from such definition, or as a sales representative as defined in section 11-51-201 (14), C.R.S., unless expressly excluded from such definition, or such person is exempted from licensing under section 11-51-402, C.R.S.;
(b) (I) A person soliciting the sale of any newspaper, magazine, or other periodical of general circulation if such sales constitute a majority of such person's business and business revenues; or
(II) A person soliciting the sale of any book, record, audio tape, compact disc, or video if the person allows the purchaser to review the merchandise without obligation for at least seven days and provides a full refund for the return of undamaged merchandise within thirty days or if the person solicits such sale on behalf of a membership club operating in conformity with 16 CFR 425;
A person making telephone calls to a residential customer for the sole purpose ofpolling or soliciting the expression of ideas, opinions, or votes, or a person soliciting solely for a political or religious cause or purpose;
A paid solicitor or charitable organization that is required to and has complied withthe registration, notice, and filing requirements of sections 6-16-104.6 and 6-16-104, respectively, or a person who is excluded from such notice and reporting requirements by section 6-16-103 (7);
A supervised financial organization, as defined in section 5-1-301 (45), C.R.S., andits employees, when acting within the scope of their employment;
A supervised lender, as defined in section 5-1-301 (46), C.R.S., and its employees,when acting within the scope of their employment;
A person selling insurance, as defined in section 10-1-102 (12), C.R.S., in compliance with the requirements of title 10, C.R.S.;
A person soliciting without the intent to complete and who does not in fact completethe sales transaction during the telephone solicitation or another telephone solicitation and who only completes the sales transaction at a later face-to-face meeting between the solicitor and the prospective purchaser, excluding a face-to-face meeting, the sole purpose of which is to collect the payment or deliver any item purchased, or a person soliciting a purchaser with whom the person has had a previous face-to-face meeting in the course of such person's business;
Any governmental entity or employee thereof, acting in the employee's official capacity;
A person soliciting telephone service, or licensed or franchised cable television service, which is billed and paid on a daily, weekly, or monthly basis and which can be canceled at any time without further obligation to the purchaser;
A person or an affiliate of a person whose business is regulated by the public utilitiescommission;
A person or an affiliate of a person whose business is regulated by the real estatecommission;
A person whose conduct is within the exclusive jurisdiction of the federal commodity futures trading commission as granted under the federal "Commodity Exchange Act", as amended;
A seller of food for immediate consumption when the sale to one purchaser does notexceed three hundred dollars;
A person who initially contacts the purchaser with a retail sales catalog requesting atelephone call response, when the person allows the purchaser to review the merchandise without obligation for at least seven days and provides a full refund for the return of undamaged merchandise within thirty days after receipt of the returned merchandise;
An issuer or a subsidiary of an issuer that has a class of securities which is subject tosection 12 of the federal "Securities Exchange Act of 1934", 15 U.S.C. sec. 78l, and which is either registered or exempt from registration under paragraph (A), (B), (C), (E), (F), (G), or (H) of subsection (g)(2) of that section;
A person who has been operating for at least three years a retail business establishment in Colorado under the same name as that used in connection with the solicitation of sales by telephone if, on a continuing basis, the majority of the seller's business involves the purchaser receiving the seller's goods and services at the seller's business location;
A person who has conducted business for at least three years under the same nameand in the same state and offers potential purchasers satisfaction guaranteed by the sending of the product or providing the service and the purchaser has an unqualified right to review and return or cancel for at least thirty days;
Any telephone marketing service company which provides telemarketing sales services under written contract to sellers and has been operating continuously for at least five years under the same business name and seventy-five percent or more of its services are performed on behalf of sellers exempt from this section. Nothing in this paragraph (s) shall be construed to exempt any seller that contracts with a telephone marketing service company for telemarketing sales services from the requirements set forth in section 6-1-303 or from the prohibitions set forth in section 6-1-304.
A person soliciting business solely from business purchasers who have previouslypurchased identical or similar goods or services from the business enterprise on whose behalf the person is calling.
(2) "Commercial telephone solicitation" means:
Unsolicited telephone calls to a person initiated by a commercial telephone seller orsalesperson, or an automated dialing machine with or without a recorded message device, for the purpose of inducing the person to purchase or invest in goods, services, or property or offering an extension of credit; or
Any other communication by a commercial telephone seller in which:
A gift, award, or prize is offered and a telephone call response from the intendedpurchaser is invited; or
A loan, credit card, or other extension of credit is offered to a purchaser who has notpreviously purchased from the person initiating the communication, and a telephone call response from the intended purchaser is invited; or
A sale is to be completed or an agreement to purchase is to be entered into duringthe course of the telephone call response; or
(c) Any other communication by a commercial telephone seller which includes representations about the price, quality, or availability of goods, services, or property and which invites a response by telephone, including pay-per-call service calls, or which is followed by a telephone call to the intended purchaser by a salesperson.
"Pay-per-call" means the use of a telephone number with a 900 prefix or any otherprefix under which liability for the service or product provided attaches to the telephone bill of the individual calling such number.
"Principal" means an owner, an officer of a corporation, a general partner of a partnership, the sole proprietor of a sole proprietorship, a trustee of a trust, or any other individual with similar supervisory functions with respect to any person.
"Purchaser" means a person who receives or responds to a commercial telephonesolicitation.
"Salesperson" means any person employed or authorized by a commercial telephoneseller to cause or attempt to cause a commercial telephone solicitation to be made.
"Telephone sales transaction" means any payment of money by a purchaser in exchange for the promise of goods, services, property, or an extension of credit by a commercial telephone seller and includes all communications which precede such payment of money.
Source: L. 93: Entire part added, p. 944, § 3, effective July 1; (1)(b)(I) amended, p. 1573, § 3, effective July 1. L. 97: (1)(s) amended, p. 966, § 1, effective May 21. L. 2000: (1)(e) and (1)(f) amended, p. 1871, § 103, effective August 2. L. 2001: (1)(d) amended, p. 1250, § 9, effective May 9, 2002. L. 2003: (1)(g) amended, p. 613, § 2, effective July 1.
Cross references: For the federal "Commodity Exchange Act", see Pub.L. 74-675, codified at 7 U.S.C. § 1 et seq.